ex_336345.htm


 


Exhibit 4.3


 


Description of the Registrant’s Securities 


Registered Pursuant to Section 12 of the 


Securities Exchange Act of 1934


 


As of December 31, 2021, Guerrilla RF, Inc. (“we,” “our,” “us,” or the “Company”) had one class of securities registered under Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”): common stock, $0.0001 par value per share.


 


  The following information is a summary of information concerning our common stock, and does not purport to be complete. It is subject to and qualified in its entirety by reference to our amended and restated certificate of incorporation and amended and restated bylaws, each of which are incorporated by reference as an exhibit      to the Annual Report on Form 10-K of which this Exhibit 4.3 is a part.


 


Authorized Capital Stock


 


Our authorized capital stock consists of 300,000,000 shares of common stock, and 10,000,000 shares of undesignated preferred stock, $0.0001 par value per share. The outstanding shares of the Company’s common stock are duly authorized, validly issued, fully paid and nonassessable.


 


Dividends


 


Subject to the rights of the holders of any outstanding preferred stock, the holders of outstanding shares of our common stock are entitled to receive dividends out of assets or funds legally available for the payment of dividends at the times and in the amounts that our Board of Directors may determine.


 


Voting


 


Holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of stockholders. No holder of common stock is entitled to cumulate votes in voting for directors.


 


No Preemptive or Similar Rights


 


Holders of our common stock have no preemptive rights. Our common stock is not subject to redemption or sinking fund provisions.


 


Liquidation


 


In the event of our liquidation, dissolution or winding-up, holders of our common stock are entitled to receive, pro rata, our assets which are legally available for distribution, after satisfaction of all outstanding debt and liabilities.


 


Preferred Stock


 


Our Board of Directors has the authority, without further action by our stockholders, to issue up to 10,000,000 shares of preferred stock in one or more series and to fix the designations, powers, preferences, rights, qualifications, limitations and restrictions thereof. Our Board of Directors can also increase or decrease the number of shares of any series of preferred stock, but not below the number of shares of that series then outstanding, without any further vote or action by our stockholders. Our Board of Directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of our common stock. The issuance of preferred stock could have the effect of delaying, deferring, or preventing a change in our control and might adversely affect the market price of our common stock and the voting and other rights of the holders of our common stock. We have no current plan to issue any shares of preferred stock.


 


Anti-Takeover Provisions


 


The provisions of the Delaware General Corporation Law (the “DGCL”), our amended and restated certificate of incorporation and our amended and restated bylaws could have the effect of delaying, deferring or discouraging another person from acquiring control of us. These provisions, which are summarized below, may have the effect of discouraging coercive takeover practices and inadequate takeover bids. They are also designed to encourage persons seeking to acquire control of us to negotiate first with our Board of Directors. We believe that the benefits of increased protection of our potential ability to negotiate with an unfriendly or unsolicited acquirer outweigh the disadvantages of discouraging a proposal to acquire us because negotiation of these proposals could result in an improvement of their terms.


 


Delaware Law


 


We are subject to the provisions of Section 203 of the DGCL regulating corporate takeovers. In general, Section 203 prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a three-year period following the date such person became an interested stockholder, unless the business combination or the transaction in which the person became an interested stockholder is approved in a prescribed manner or certain other exceptions are met. Generally, a “business combination” includes a merger, asset or stock sale, or other transaction or series of transactions together resulting in a financial benefit to an interested stockholder. An “interested stockholder” includes a person who, together with affiliates and associates, owns, or did own within three years prior to the determination of interested stockholder status, 15% or more of the corporation’s outstanding voting stock. The existence of this provision generally will have an anti-takeover effect for transactions not approved in advance by the Board of Directors, including discouraging attempts that might result in a premium over the market price for the shares of common stock held by stockholders.


 


Amended and Restated Certificate of Incorporation and Amended and Restated Bylaw Provisions


 


Our amended and restated certificate of incorporation and our amended and restated bylaws include a number of provisions that could deter hostile takeovers or delay or prevent changes in control of our company. Certain of these provisions are summarized below:


 


	 	
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			Board Vacancies. Our amended and restated certificate of incorporation and amended and restated bylaws authorize only our Board of Directors to fill vacant directorships, including newly created seats. In addition, the number of directors constituting our Board of Directors is permitted to be set only by a resolution adopted by a majority vote of our entire Board of Directors. These provisions would prevent a stockholder from increasing the size of our Board of Directors and then gaining control of our Board of Directors by filling the resulting vacancies with its own nominees. This makes it more difficult to change the composition of our Board of Directors but promotes continuity of management.

			



	 	
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			Classified Board. Our amended and restated certificate of incorporation and amended and restated bylaws provide that our Board of Directors is classified into three classes of directors, each with staggered three-year terms. A third party may be discouraged from making a tender offer or otherwise attempting to obtain control of us as it is more difficult and time consuming for stockholders to replace a majority of the directors on a classified Board of Directors.

			



	 	
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			Directors Removed Only for Cause. Our amended and restated certificate of incorporation provides that stockholders may only remove a director for cause, and only by the affirmative vote of the holders of at least two-thirds of our outstanding common stock.

			
	 	
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			Elimination of Stockholder Action by Written Consent; Special Meetings of Stockholders. Our amended and restated certificate of incorporation provides that our stockholders may not take action by written consent, but may only take action at annual or special meetings of our stockholders. As a result, holders of our capital stock would not be able to amend our amended and restated bylaws or remove directors without holding a meeting of our stockholders called in accordance with our amended and restated bylaws. Further, our amended and restated bylaws provide that special meetings of our stockholders may be called only by a majority of our Board of Directors, the chairman of our Board of Directors, or our chief executive officer, thus prohibiting a stockholder from calling a special meeting. These provisions might delay the ability of our stockholders to force consideration of a proposal or for stockholders to take any action, including the removal of directors.

			



	 	
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			Advance Notice Requirements for Stockholder Proposals and Director Nominations. Our amended and restated bylaws establish advance notice procedures with respect to proposals and the nomination of candidates for election as director. Our amended and restated bylaws also specify certain requirements regarding the form and content of a stockholder’s notice. These provisions may preclude our stockholders from bringing matters before our annual meeting of stockholders or from making nominations for directors at our annual meeting of stockholders if the proper procedures are not followed. These provisions may defer, delay or discourage a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors or otherwise attempting to influence or obtain control of us.

			



	 	
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			No Cumulative Voting. Our amended and restated certificate of incorporation does not provide for cumulative voting in the election of directors.

			



	 	
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			Supermajority Requirement for Amendment of Charter Provisions. Our amended and restated certificate of incorporation provides that the affirmative vote of the holders of least 66 2/3% of our outstanding common stock is required to amend certain provisions of our amended and restated certificate of incorporation.

			



	 	
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			Choice of Forum. Our amended and restated certificate of incorporation provides that, to the fullest extent permitted by law, the Court of Chancery of the State of Delaware will be the exclusive forum for: (i) any derivative action or proceeding brought on our behalf; (ii) any action asserting a claim of breach of a fiduciary duty owed by any of our directors or officers to the Company or our stockholders; (iii) any action asserting a claim against us arising pursuant to the DGCL, our amended and restated certificate of incorporation or our amended and restated bylaws; or (v) any action asserting a claim against us that is governed by the internal affairs doctrine. Our amended and restated bylaws provide that the federal district courts of the United States of America will, to the fullest extent permitted by law, be the exclusive forum for resolving any complaint asserting a cause of action arising under the Securities Act, which we refer to as a Federal Forum Provision. Our decision to adopt a Federal Forum Provision followed a decision by the Supreme Court of the State of Delaware holding that such provisions are facially valid under Delaware law. Although there can be no assurance that federal courts or state courts will follow the holding of the Delaware Supreme Court or determine that the Federal Forum Provision should be enforced in a particular case, application of the Federal Forum Provision means that suits brought by our stockholders to enforce any duty or liability created by the Securities Act must be brought in federal court and cannot be brought in state court. Although neither the exclusive forum provision nor the Federal Forum Provision applies to suits brought to enforce any duty or liability created by the Exchange Act, Section 27 of the Exchange Act creates exclusive federal jurisdiction over all claims brought to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder. Accordingly, actions by our stockholders to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder also must be brought in federal court. Our stockholders will not be deemed to have waived our compliance with the federal securities laws and the regulations promulgated thereunder. Any person or entity purchasing or otherwise acquiring or holding any interest in any of our securities shall be deemed to have notice of and consented to our exclusive forum provisions, including the Federal Forum Provision. These provisions may limit a stockholder’s ability to bring a claim in a judicial forum of their choosing for disputes with us or our directors, officers or other employees, which may discourage lawsuits against us and our directors, officers, and other employees.

			



 


Transfer Agent and Registrar


 


The transfer agent and registrar for the Company’s common stock is VStock Transfer, LLC.  The transfer agent’s address is 18 Lafayette Place, Woodmere, NY 11598.


 


Exchange Listing


 


The Company’s common stock is not yet currently quoted on OTC Markets Group trading platform under the symbol “GUER.”


 





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